BEFORE THE NATIONAL GREEN TRIBUNAL
MISC. APPLICATION NO.27 OF 2012
APPEAL No. 04 OF 2012
1. Nirma Limited
1. Ministry of Environment & Forests
Government of India
Paryavaran Bhavan, CGO Complex
Lodhi Road, New Delhi-110003.
2. Revenue Department
State of Gujarat
3. Gujarat Pollution Control Board
Through its Member Secretary
Sector 10-A, Parayavaran Bhawan
Opp. Bij Nigam
4. Shree Mahuva Bandhara Khetiwadi
Pariyavaran Bachav Samitee
Through its Secretary
Bharat Shiyal S/o Naran Shiyal
R/o. Dhgheri, at Post Madhiya
Tal. Mahuva, District Bhavnagar
Counsel for Appellant:
Shri Dushyant Dave, Sr. Advocate alongwith Shri Prashanto Chandra Sen, Advocate and Shri Ramesh Singh, Advocate
Counsel for Respondents:
Shri Raj Panjwani, Sr. Advocate alongwith Shri Abhimanue Shrestha for R-4
Justice A.S. Naidu (Acting Chairperson) Dr. G.K. Pandey (Expert Member)
.................................................................................................... Dated 1st May, 2012
JUDGMENT BY THE BENCH
Order dated 1st December, 2011 passed by the Ministry of Environment and Forests (MoEF) revoking the Environmental Clearance (EC) granted to Nirma Limited for 3
the proposed Cement Plant (1.91 MTPA; 1.50 Clinker), Coke Oven Plant (1.5 MTPA) and Captive Power Plant (50 MW) at Village Padhiyarka of Taluka Mahuva, District Bhavnagar, in the State of Gujarat, in exercise of the power conferred under Section 5 of the Environment (Protection Act) 1986; is assailed in Appeal No.4/2012 by the Project Proponent i.e. Nirma Limited.
2. Admittedly, Nirma Ltd., approached the MoEF and filed an Application for granting EC for the aforesaid proposed Cement, Coke Oven and Captive Power Plants at Village Padhiyarka. On coming to know about the said fact several representations were filed by persons aggrieved / interested in protection of environment, as well as residents of villages situated in the vicinity objecting grant of EC. Several acts of omissions and commissions as well as misrepresentations and suppression of facts were also projected before the Authorities by the objectors. It further appears that the villagers and farmers constituted an Associate with the name of Shri Mahuva Bandhara Khetiwari Paryavaran Bachav Samitee and got it registered as a Society under the Bombay Public Trust. The said Association raised several allegations before the Competent Authorities with regard to non consideration as well as non fulfilment of mandatory environment disorders and impacts which may be caused by the project. However, the MoEF after 4
consideration of all the objections granted EC to the project by order dated 11th December, 2008
It appears that the said Association knocked the portals of Hon'ble High Court of Gujarat inter-alia challenging the EC granted in favour of M/s Nirma Ltd., by filing a writ petition which was registered as Special Civil No.3477 of the 2009. It appears that Hon'ble Gujarat High Court dismissed the said writ application on 26th April 2010. The order of dismissal was assailed before the Hon'ble Supreme Court in Special Leave Petition No. 15016 of 2010. Number of other SLPs were also filed by other persons interested, assailing the EC granted to the Projects in question being SLP (Civil) No.14698 of 2010, SLP (Civil) No.32414 of 2010, and SLP (Civil) No.32615 of 2010.
3. All the SLPs were heard together by the Hon'ble Supreme Court. In course of hearing on 18th March, 2011, learned solicitor general submitted that the Ministry would like to revisit the Environment clearance in respect of the project undertaken by Nirma Ltd., particularly in view of the conflicting stands taken in the affidavits from time to time. After hearing Learned Senior Counsel for the parties, the Hon'ble Supreme Court directed that the Expert Appraisal Committee (EAC) of the MoEF should call for the reports of an Expert Body consisting of five independent reputed scientists, who will visit the site and submit the report on the 5
four questions framed by the Hon'ble Apex Court. The Hon'ble Supreme Court further directed that the Expert Body will give hearing to the Project Proponent, Nirma Ltd., as well as to all objectors and submit its report. The Hon'ble Supreme Court also made further observations with regard to the formalities to be adopted and directed the Competent Authority to submit an affidavit as to why the ratio of the judgment of the Supreme Court in the case of LAFARGE was not being followed by the MoEF.
4. All the cases finally came up for hearing on and were disposed of by the Hon'ble Supreme Court by order dated 9th December, 2011 observing as follows:-
"Upon hearing counsel the Court made the following
Mr. D.A. Dave, learned senior counsel appearing for NIRMA, states that, on 1st December, 2011, the Competent Authority under Environment (Protection) Act, 1986, has passed an order against which NIRMA wants to file an appeal before the National Green Tribunal. They seek four weeks' time therefor, which is granted. The National Green Tribunal will decide the matter as expeditiously as possible in accordance with law, 6
The special leave petitions are, accordingly disposed of."
5. Pursuant to the leave obtained from the Hon'ble Supreme Court, supra, Nirma Ltd., has filed the present appeal assailing the decision taken by the MoEF cancelling the EC granted to the project, impleading the MoEF, Revenue Department and Gujarat Pollution Control Board only Respondents.
Before commencement of the hearing, the present application was filed by "Shri Mahua Bandhara Khetiwadi Pariyavaran Bachav Samittee" praying to be impleaded as a respondent in the appeal. It is stated that severe damage is likely to be caused to the environment and the same can only be prevented if the Applicant is permitted to put forth the true facts before this Tribunal. It is further, alleged that despite of the fact that the Member's of the Association are likely to be affected by the proposed Cement Plant and are vitally interested in the lis, the Appeal has been filed without impleading them as one of the Respondent's. Further, according to the Applicants the members of the Association have taken part in the movement and raised protest from the day one when the project was proposed to be installed and as such would be able to assist this Tribunal, both on the question of facts and law.
6. It is further, averred that not giving an opportunity of hearing to the Applicant would cause immense prejudice and would breach their fundamental rights to enjoy fresh water and clean environment. Further it is submitted that the rights granted to the citizens under Article 21 of the Constitution of India shall be infringed if the Applicants are not impleaded as party respondent and granted opportunity to put forth their grievances.
7. A detailed reply has been filed by Nirma Ltd., repudiating most of the facts stated in the potions for impletion. It is stated that applicant is neither a necessary nor a proper party to the present proceedings. In as much as the Appeal relates only to the question of revocation of the environmental clearance granted earlier in favour of the Appellant. For adjudicating such an issue, there is no necessity to give an opportunity of hearing to the Applicant, in much as the main architect of the order i.e. MoEF is a party to the Appeal and is capable of protecting the impugned order passed by it.
It is further averred that the Applicant Association was not involved in the exercise of revocation of EC undertaken by Respondent No.1, they also took no steps to implead themselves in the said proceedings and thus, have no locus standi to be impleaded in the present Appeal. Further, it is stated that the Applicant neither took part in the public 8
hearing nor filed any representation before the MoEF and as such is not a necessary party and the application should be rejected in limini.
8. Mr. Pandjwani Learned Senior Consul appearing for the Applicant forcefully submitted that the applicant being a registered Association is a body corporate. The members of the Association took active part in the process of EC with regard to the aforesaid projects, from the very inception. Not only they have filed objections but also pursued the issue. They are not strangers to the litigations on the other hand they had taken part at all stages, of the decision making process.
9. Relying upon the Rio declaration on Environment and Development, Mr. Panjwani submitted that environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities and the opportunity to participate in a decision making process. It is submitted that this Tribunal having been constituted with the aims and objectives of effective and expeditious disposal of cases relating to environment's protection and conservation of forests and to deal with any legal right relating to 9
environments and is also vested with the power to handle the multi-dimensional issues involved in environmental cases, no barrier should be created to keep a group of justice seekers, away from the hearing of a dispute involving environment.
10. Mr. Dave, learned Senior Advocate appearing for the Appellant on the other hand, submitted that the applicant is not a registered body, and has absolutely no right of audience with regard to revocation of the EC granted by the MoEF earlier. The present controversy is limited only with regard the revocation of the order which has been passed by the MoEF and thus the petitioners association does not have any right to take part in the proceedings. Mr Dave relying upon Section 16 of the NGT Act, further submitted that this appeal being a Statutory one, only those persons who were parties before the authorities whose orders are assailed have a right to be impleaded and heard. The present Applicant being not a party before the Competent Authority nor it was involved in the exercise of revocation of environmental clearance under taken by Respondent No.1 MoEF, is not a necessary party. Mr. Dave further submitted that a person is the sole architect of his case and he has a right to choose his own adversary against whom he seeks relief. In the case in hand as no relief is sought against the applicant, he is neither a necessary party nor a proper party.
11. In support of his submission Mr. Dave relied upon a decision in a case of Northern Plastics Ltd. Vs Hindustan Photo Films Manufacturing Company Ltd. and Others (1997) 4 SCC 452. In the said decision, the Hon'ble Supreme Court has held as follows:
" At the outset it must be kept in view that the appeal is a creature of statute. The right to appeal has to be exercised by persons permitted by the Statute to prefer appeals subject to the conditions regarding the filing of such appeals. We may in this connection usefully refer to a decision of four learned Judges of this Court in the case of Anant Mills Co. Ltd., Vs State of Gujarat. In the that case Khanna, J., speaking for the Court had to consider the question whether the provision of Statutory appeal as per Section 406(2)(e) of the Bombay Provincial Municipal Corporation Act, 1949 which required the appellant to deposit the disputed amount of tax before the appeal could be entertained could be said to be in any way violative of Article 14 of the Constitution of India. Repelling the aforesaid challenge to the vires of the said provision the following pertinent observations were made in para 40 of the Report: (SCC pp. 202-03 para-40)
".... The right of appeal is the creature of a Statute. Without a Statutory provision creating such a right the 11
person aggrieved is not entitled to file an appeal. We fail to understand as to why the Legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reason there appears to be no legal or constitutional impediment to the imposition of such conditions. It is permissible, for example, to prescribe a condition in criminal cases that unless a convicted person is released on bail, he must surrender to custody before his appeal against the sentence of imprisonment would be entertained. Likewise, it is permissible to enact a law that no appeal shall lie against an order relating to an assessment of tax unless the tax had been paid. Such a provision was on the Statute-book in Section 30 of the Indian Income Tax Act, 1922. The proviso to that section provided that ' ... no appeal shall lie against an order under Sub-section (1) of Section 46 unless the tax had been paid.' Such conditions merely regulate the exercise of the right of appeal so that the same is not abused by a recalcitrant party and there is no difficulty in the enforcement of the order appealed against in case the appeal is ultimately dismissed. It is open to the Legislature to impose an accompanying liability upon a party upon whom legal right is conferred or to prescribe conditions for the exercise of the right. Any requirement for discharge of that liability or the fulfilment of that condition in case the party concerned seeks to avail of the said right is a valid piece of 12
legislation, and we can discern no contravention of Article 14 in it."
12. The facts of the case of Northern Plastics Ltd., supra is quite different, from the facts of the case in hand. Admittedly the Hon'ble Supreme Court, in the said case, was dealing with the locus standi and a right of a person to prefer an appeal. In the present case, however, the Applicant want to be impleaded as a Respondent and prayed to assist the Court in arriving at a just decision. Section 16 of the NGT Act stipulates that the person aggrieved by an order passed under any of the Acts set forth as (a to j) thereof can prefer an Appeal. Accordingly, Nirma Ltd., has assailed the order passed by the MoEF under Environmental (Protection) Act, 1986. It is needless be said that as the Applicant is not aggrieved by the order cancelling the EC it has no right to prefer an Appeal but then being a party to the entire proceeding culminating in the order cancelling the EC, it has a right to file an application to be impleaded as an Respondent, and pray for granting opportunity of hearing.
13. The dispute and controversy arising out of the seven acts enumerated in Schedule 1 of the NGT Act, 2010 are not adversary in nature. In other words in such type of litigation neither there is a plaintiff nor a defendant. The controversy is more in the nature of litigations involving 13
public interest. The procedure adopted for considering an application filed for granting EC for any proposed project, has to be dealt with in consonance with the provisions of Environment Impact Assessment (EIA) Notification, 2006 coupled with the provisions of Environment (Protection) Act, 1986 and rules framed thereunder. The provisions of the said Act Rules and Notifications grant extensive access to the public in general to take part and participate in the decision making process. Perusal of the report submitted by the Expert Body constituted by the MoEF in accordance with the direction of the Hon'ble Supreme Court, also reveals that the applicant and many others took active part and raised objections to the proposal of granting EC to the project. The orders passed by the Hon'ble Supreme Court also reveal that the Applicant was immensely interested in the subject matter. It has not only raised objections but also moved the Gujarat High Court and thereafter Hon'ble Supreme Court, for redressal of its grievances. Thus it is clear that the members of the applicants Associations are not strangers to the 'lis' on the other hand they have taken part in all stages of the decision making process.
14. It is no more resintegra that where the Court finds that addition of a new party is absolutely necessary to enable it to adjudicate affectively and completely the mater in controversy, it will permit addition of the party. In the case in hand, as would be evident from the discussions made 14
above, the applicant Association and its members all along took keen interest in the controversy in issue and they took active part, by filing objections and otherwise. They had also approached the Gujarat High Court and Hon'ble Supreme Court in pursuit of their grievances. That apart, by order dated 18th March, 2011, the Hon'ble Supreme Court specifically directed the Expert Body to give hearing to Nirma Ltd., as well as to all objectors. It is needless to say that the applicant and or its members were among the objectors. Thus, they have vested interest in the subject matter of the Appeal and unless an opportunity is granted to them, to put forth their grievance, great prejudice shall be caused, which cannot be mitigated otherwise. We therefore, allow the application for impletion of party and direct that the applicant be added as a Respondent No. 5 to the Appeal.
15. The appellant is directed to serve a copy of the memorandum of appeal alognwith other documents on the applicant within a period of two weeks hence. The newly added respondent shall file its reply within a period for three weeks from the date of the service of the Appeal memorandum. The mater being very urgent we direct the same be listed for hearing on 30th May, 2012. It is made clear that we have not examined the merits of the case and the observations made above are only primafaci passing remarks 15
and shall not be binding and the Appeal shall be disposed of strictly in accordance with law.
16. Miscellaneous Application is accordingly allowed.
Dr. G.K. Pandey Justice A.S. Naidu Expert Member Acting Chairperson Durga Malhotra
1 May, 2012